City's Lawyers Say Mayor Can't Control Class Sizes

By ANEMONA HARTOCOLLIS

Published: September 7, 2006

CORRECTION APPENDED

Lawyers for Mayor Michael R. Bloomberg told an appeals court yesterday that the mayor did not have the authority to force the school system to reduce class sizes.

The claim came during a hearing in a case in which parents and teachers are trying to put a referendum on the ballot to force the mayor to hire more teachers and reduce the class sizes in city schools. They argue that smaller classes, in line with those in much of the rest of the state, are the best way to improve education for city students.

Kindergarten classes averaged 21.8 students in the city, but 19.1 in the rest of the state in 2004-5, the latest data available from the state. In Grade 4, classes averaged 24.9 in the city, but 21 in the rest of the state, and in Grades 6 to 8, they averaged 27 to 29 in the city, but 21 to 22 outside the city.

Even though the mayor has taken control of city schools and Chancellor Joel I. Klein answers to him like any city commissioner, city lawyers argued, the school district remains separate from the city and sets its policy independently.

The city lawyers contended that the mayor did not have the power to make policy decisions and allocate money for the schools on his own.

''The New York City Board of Education still exists,'' Alan G. Krams, a city lawyer, told a five-judge panel of the Appellate Division of State Supreme Court in Manhattan yesterday, using the old name for what is now called the city's Department of Education.

The mayor's gaining control of the schools in 2002, Mr. Krams said, ''did not turn the school district into an arm of city government.''

Randy M. Mastro, a lawyer for the parents and teachers, argued that this was hardly how the changes were characterized in 2002.

Mr. Mastro told the judges yesterday that at the time, the change was described as radical, in terms like ''wholesale'' and ''a revolution.'' So it is ironic, he suggested, that the city is now playing down the power of the mayor to control school spending.

Even the jacket of the 2002 Albany bill that made Mr. Bloomberg accountable for the schools, Mr. Mastro said, supported the notion of mayoral control by saying the mayor would have the ''primary responsibility.''

The judges were cautious yesterday about giving any hint that they would rule against the mayor. One judge, Richard T. Andrias, wondered whether the class-size proposal could lead to other requirements, like spending ''enough money so that every kid scores a certain level on the test.''

Mr. Mastro also cited his own experience in city government to support his contention that the mayor could allocate money to reduce class size, subject to approval by the City Council. He was a deputy mayor under Rudolph W. Giuliani, who started the campaign for mayoral control of city schools, which was then taken up by Mr. Bloomberg.

The case being argued yesterday, known as Pena v. Robles, was brought by parents, including Leonie Haimson, the founder of Class Size Matters, a nonprofit advocacy group, and teachers, represented by Randi Weingarten, president of the teachers' union, and others. They collected more than 70,000 signatures to put a class-size referendum on the ballot in November. The city sought to block the referendum, a lower court judge, Lewis Bart Stone, ruled in the city's favor in May, and the case is now being appealed.

The referendum would ask voters whether the City Charter should be amended to require the mayor to set aside 25 percent of any unencumbered funds received from the state through the Campaign for Fiscal Equity lawsuit and to spend it on reducing class size.

In the Campaign for Fiscal Equity case, the state's highest court has ordered the state to provide $4.7 billion to $5.63 billion in additional operating funds to city schools over four years.

Correction: September 14, 2006, Thursday
An article last Thursday about a hearing in a lawsuit seeking to reduce class size in New York City public schools referred imprecisely to a decision by the state's highest court, the Court of Appeals, in a separate case concerning school financing. It ruled that the state had to provide adequate financing for city schools, but did not set a specific amount. (Last March, a lower court, the Appellate Division of State Supreme Court, ordered the Legislature to allocate anywhere between $4.7 billion and $5.63 billion extra to city schools.)